TCPA survives strict scrutiny

Brickman v. Facebook, Inc., No. 16-cv-00751, 2017 BL 25487
(N.D. Cal. Jan. 27, 2017)
One criticism of expanding strict scrutiny is that courts
will be extremely tempted to find that sensible regulations pass strict
scrutiny, thus watering down its protection for when it is needed.  Consider this decision, finding that the
Telephone Consumer Protection Act survives strict scrutiny: is that evidence of
the feared phenomenon?
Facebook sent computer-automated “Birthday Announcements
Texts” to cell phones of Facebook users informing them of friends’ birthdays.  Brickman sued on behalf of a putative class
for violation of the TCPA. A violation requires that (1) the defendant called a
cellular telephone number; (2) using an automated telephone dialing system
(“ATDS”); (3) without the recipient’s prior express consent.  Skipping a bunch of analysis, Facebook’s
system allegedly qualified because of the automation despite the involvement of
humans in selecting their own friends and entering birthday information.  Nor did the court need to address whether
Brickman actually consented, contrary to his allegations, at the motion to
dismiss stage.
The court agreed that, under Reed v. Gilbert, 135 S. Ct.
2218 (2015), the TCPA was content-based because its exceptions for any “call
made for emergency purposes” and any call “made solely to collect a debt owed
to or guaranteed by the United States.” Each of these exceptions would require
a court to examine the content of the message that is conveyed in order to
determine if a violation of the TCPA has occurred.  Brickman argued that the debt-collection
exemption was based on a relationship, not on content, but the court disagreed,
because “[t]he plain language of the exception makes no reference whatsoever to
the relationship of the parties” and referred instead to the purpose of the
calls. [I’m not sure the purpose can be disentangled from the relationship, but
that’s Reed for you.]  The FTC’s authority to create further
exceptions to protect privacy interests was not content-based; the FTC could
create content-neutral, relationship-based exceptions.
Fortunately, the TCPA passed strict scrutiny.  The compelling government interest was that
in protecting residential privacy, an interest strengthened when individuals
seek protection from unwanted speech. 
From Frisby: “[A] special
benefit of the privacy all citizens enjoy within their own walls, which the
State may legislate to protect, is an ability to avoid intrusions.”
Next, the TCPA was narrowly tailored.  Facebook argued that it was underinclusive
and overinclusive, and because there were less restrictive means of achieving
the compelling interest.
While “underinclusivity raises a red flag, the First
Amendment imposes no freestanding ‘underinclusiveness limitation.’” Underinclusiveness
can raise doubts as to whether the government is really pursuing a stated
interest or whether the statute actually furthers that compelling interest. Because
“[a] State need not address all aspects of a problem in one fell swoop,” the
Supreme Court has “upheld laws — even under strict scrutiny — that conceivably
could have restricted even greater amounts of speech in service of their stated
interests.”
Facebook argued that texts about emergencies or government
debt were no less intrusive than other types of calls.  But that’s not true.  First, the TCPA isn’t “riddled” with
exceptions, as the code in Reed was.  Nor would these exceptions allow “unlimited
proliferation” of calls.  Emergencies by
definition are limited in time and purpose, and Congress specifically found
that limiting automated calls except with consent or in emergency situations
was “the only effective means of protecting telephone consumers from the
nuisance and privacy invasion.” Telephone Consumer Protection Act of 1991, Pub.
L. No. 102-243, § 2(12), 105 Stat. 2394 (1991). 
Thus, the exception was narrowly tailored and carefully balanced to
address both privacy and health/safety.  Reed recognized that a speech regulation
narrowly tailored to address the challenges of protecting safety “well might
survive strict scrutiny.”
The government debt exception was likewise limited by the
fact that such calls would only be made to those who owe a debt to the federal
government.  Anyway, the US wouldn’t be
subject to the TCPA regardless because it hasn’t surrendered its sovereign
immunity.  That exception “merely carves
out an exception for something the federal government is already entitled to
do, and government speech is exempt from First Amendment scrutiny.” [Not sure
why the fact that the message would be government speech relates to whether the
statute is underinclusive.]  Even
assuming this exception, added to the TCPA in 2015, was unconstitutional, it
would be severable.
Underinclusivity makes a speech restriction fail strict
scrutiny “when it leaves appreciable damage to that supposedly vital interest
unprohibited.” Reed.  But
here, the exemptions left “negligible damage” to privacy to continue.
Facebook also argued that the TCPA was overinclusive because
“in purporting to target the ill of unwanted telemarketing it sweeps in speech
that facilitates social connections.” But the court disagreed, finding that the
TCPA was quite limited in what it prohibits: calls made using an ATDS without
the prior express consent of the recipient. Express consent completely removes
calls from the statute’s purview.  Thus,
it wasn’t overinclusive.
Facebook also suggested less restrictive alternatives to
show lack of narrow tailoring, but they wouldn’t be effective.  In Cahaly v. Larosa, 796 F.3d 399, 406 (4th
Cir. 2015), the court found plausible alternatives to include time-of-day
limitations, mandatory disclosure of the caller’s identity, and do-not-call
lists. Gresham v. Rutledge, No. 4:16CV00241 JLH, 2016 WL 4027901 (E.D. Ark.
July 27, 2016), recognized plausible less restrictive alternatives as including
time-of-day limitations, disconnection requirements, and prohibitions on calls
to emergency lines.  However, in those
cases, the government didn’t argue about whether those would actually work; it
did here, and the court agreed with the government’s criticisms.
“Time-of-day limitations would not achieve the same privacy
objectives because even though such a restriction may designate the span of
time in which callers can intrude on an individual’s privacy, it would also
designate a time for intrusive phone calls.” Mandatory disclosure of a caller’s
identity and disconnection requirements would also not be as effective because they
wouldn’t prevent the privacy intrusion from the phone call in the first place.
Do-not-call lists wouldn’t work as well; by requiring opt-out instead of
opt-in, they’d “obviously” not be as effective.   And the TCPA already prohibits calls to
emergency lines.
Facebook also suggested exempting noncommercial calls on
residential and fax lines, but under Facebook’s own analysis, those are
content-based and also subject to strict scrutiny, so they can’t count as less
restrictive alternatives.

Facebook’s as-applied challenge also failed, even assuming
that its texts were noncommercial speech, given the above reasons.

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